University of Chicago Legal Forum

Volume 1994 Article 23

1994

The The Conrail "Arguably Justified Test" and aPublic Employer's Unilateral Imposition of anUnconstitutional Drug Testing Program under theRailway Labor ActJonathan Savar

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Recommended CitationSavar, Jonathan (1994) "The The Conrail "Arguably Justified Test" and a Public Employer's Unilateral Imposition of anUnconstitutional Drug Testing Program under the Railway Labor Act," University of Chicago Legal Forum: Vol. 1994, Article 23.Available at: http://chicagounbound.uchicago.edu/uclf/vol1994/iss1/23

The Conrail "Arguably Justified" Test and aPublic Employer's Unilateral Imposition ofan Unconstitutional Drug Testing Program

Under the Railway Labor Act

Jonathan Savart

The Railway Labor Act1 ("RLA") imposes obligations on rail-way and airline employers to bargain with employee unions overpay, workplace rules, and working conditions. The RLA dividesemployer-employee disputes into two categories, which the courtshave termed "major disputes" and "minor disputes."2 A majordispute arises when an employer unilaterally attempts to"change the rates of pay, rules or working conditions of its em-ployees ... except in the manner prescribed in [existing collectivebargaining] agreements."3 A major dispute must be resolvedthrough an often long and arduous process of bargaining andmediation.4 Minor disputes, which involve a party's "interpreta-tion or application of [existing] agreements concerning rates ofpay, rules, or working conditions,"5 are subject to compulsoryand binding arbitration before the National Railroad AdjustmentBoard ("NRAB").6 Significantly, during a major dispute a courtmust grant an injunction preserving the pre-dispute status quountil the dispute is resolved,7 but during a minor dispute thepre-dispute status quo is not similarly preserved.8

t A.B. 1992, Princeton University; J.D. Candidate 1995, University of Chicago.45 USC § 151 et seq (1988).

2 See, for example, Consolidated Rail Corp. v Railway Labor Executives' Association,

491 US 299 (1989) ("Conrail").3 45 USC § 152(7) (1988).

45 USC § 156 (1988).45 USC § 152(6) (1988).

6 45 USC § 153(1)(i) (1988).7 45 USC § 156. See Detroit & T. S. L. R. Co. v Transportation Union, 396 US 142

(1969) (upholding an injunction to maintain the pre-dispute status quo during arbitrationof a major dispute).

' Conrail, 491 US at 304. Compare Locomotive Engineers v Missouri.K.T RailroadCo., 363 US 528, 531 (1960) (noting that during a minor dispute the employer is notobliged to preserve the pre-dispute status quo).,

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In Consolidated Rail Corp. v Railway Labor Executives' Asso-ciation,9 the Supreme Court established the standard for deter-mining whether an employer-employee dispute is "major" or "mi-nor" under the RLA. The Court held that a dispute is minor ifeither party can "arguably justify" the disputed action under theexisting agreement. ° Applying the "arguably justified" test, theConrail Court held that the railroad's unilateral inclusion of uri-nalysis drug screening in all periodic and return-from-leave phys-ical examinations of employees constituted a minor dispute to bearbitrated before the NRAB."1 The result of the Court's determi-nation was to keep the drug testing program in effect pendingthe NRAB's resolution of the dispute.12 Significantly, becausethe union did not allege irreparable injury in its request for pre-liminary injunctive relief, the Court explicitly declined to resolvewhether an injunction based on a claim of irreparable injurywould be appropriate. 3

The Supreme Court's decision in Conrail does not prescribethe appropriate response to a public employer's 4 unilateral im-position of an unconstitutional policy of purely random, mandato-ry, and suspicionless drug testing of its employees. 5 Two pre-Conrail Supreme Court decisions suggest that absent a compel-ling interest such as public safety, such a testing program wouldviolate employees' Fourth Amendment right to remain free of un-

9 491 US 299 (1989).'0 Id at 307.

" Id at 320.12 Id at 320.13 Conrail, 491 US at 304 n 5.14 This Comment focuses upon the actions of public sector employers subject to the

RLA. Such employers may not unilaterally act in a way that infringes upon theiremployees' constitutional rights. A private sector employee is protected in this manneronly where the private employer's actions constitute "public action" because of heavy gov-ernment regulation. See generally Survey of the Law on Employee Drug Testing, 42 UMiami L Rev 553, 567-609 (1988) (discussing the constitutional implications of employeedrug testing); Note, Mandatory Drug Testing of Public Sector Employees: ConstitutionalImplications, 65 U Detroit L Rev 315 (1988).

15 This Comment addresses in particular the imposition of a purely random, manda-tory, and suspicionless drug testing program because, under two recent Supreme Courtdecisions, such a testing program is clearly unconstitutional. See Part III of this Com-ment. "Purely random" means that the test does not distinguish between workers in safe-ty-sensitive positions and those in non-safety-sensitive positions. "Mandatory" means thatthe employees must submit to the testing. "Suspicionless" means that the employer hasno reasonable grounds for suspecting an employee's drug use. Finally, the hypotheticalcontemplates that the employer has unilaterally imposed the unconstitutional testingprogram over the objections of the employees.

For a further discussion of the reasons that the testing program is unconstitutionaland the relevance of these factors, see Part III of this Comment.

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reasonable searches and seizures. 6 Under Conrail, however, acourt might determine that, given practice, usage, and custom, apublic employer's unilateral imposition of such a program con-stitutes a minor dispute. Because the pre-dispute status quo isnot preserved during a minor dispute, the employer's drug test-ing program would remain in effect pending the NRAB's resolu-tion of the dispute. In the interim, the program would violate theemployees' Fourth Amendment rights.

This Comment argues that the Conrail "arguably justified"test does not adequately protect employees' Fourth Amendmentrights when a public employer unilaterally imposes a purely ran-dom, mandatory, and suspicionless drug test. This Commenttherefore proposes that a court faced with this issue should adopta presumption that a disputed unconstitutional program is not"arguably justified" and thus that the dispute is major, therebypreserving the pre-dispute status quo and protecting employeesfrom deprivation of their constitutional rights.

Part I of this Comment examines the distinction betweenmajor and minor disputes under the RLA. Part II describes theConrail "arguably justified" test for distinguishing between majorand minor disputes, noting that the Conrail Court declined todecide whether preliminary injunctive relief to preserve the pre-dispute status quo would be appropriate during a minor dispute.

Part III argues that a public employer's imposition of a pure-ly random, mandatory, and suspicionless drug testing programviolates its employees' Fourth Amendment right to remain freefrom unreasonable searches and seizures. Part III also observesthat because deprivation of employees' constitutional rights con-stitutes irreparable injury, a preliminary injunction is ordinarilythe appropriate remedy. After Conrail, however, a disagreementover such a test might constitute a minor dispute, allowing theprogram to continue during NRAB arbitration.

Part IV then examines cases addressing whether a court maygrant a preliminary injunction preserving the pre-dispute statusquo pending the NRAB's disposition of a minor dispute whereconstitutional rights are implicated. Part IV argues that once acourt characterizes a dispute as minor, it may not subsequently

" Skinner v Railway Labor Executives' Association, 489 US 602, 616-21 (1989) (sug-gesting the unconstitutionality of requiring public sector employees to submit to a manda-tory drug and alcohol testing program absent a compelling governmental interest); Na-tional Treasury Employees Union v Von Raab, 489 US 656, 665 (1989) (requiring that amandatory drug testing program of public sector employees comport with the reasonable-ness requirements of the Fourth Amendment).

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grant a preliminary injunction because it no longer retains juris-diction over the dispute.

Part V concludes that a court faced with this issue shouldadopt a presumption that a disputed unconstitutional program isnot "arguably justified" and thus that the dispute is major. Eventhough a court may desire to protect employees from a possibleviolation of their constitutional rights by enjoining further testingpending NRAB resolution of the dispute, the court may not en-join the program after classifying the dispute as minor because itno longer retains jurisdiction over the dispute. Because a courtshould not determine that an unconstitutional program is "argu-ably justified" by practice, usage, and custom,17 imposing a judi-cial presumption that a disputed unconstitutional program is not"arguably justified" takes seriously the Conrail dividing line be-tween an "arguably justified" policy and a unilateral change inthe terms of a collective bargaining agreement while protectingemployees from violation of their rights.

I. THE DISTINCTION BETWEEN A MAJOR DISPUTE AND AMINOR DISPUTE UNDER THE RLA

A. The Definition of a Major Dispute Under the RLA

The RLA divides employer-employee disputes into two cate-gories, commonly termed "major" and "minor." In defining a ma-jor dispute, the RLA provides that no carrier "shall change therates of pay, rules or working conditions of its employees, as aclass, as embodied in agreements except in the manner pre-scribed in such agreements" or through the mediation proceduresset forth in the RLA. Is The Supreme Court has held that a ma-jor dispute

relates to disputes over the formation of collectiveagreements or efforts to secure them. They arise wherethere is no such agreement or where it is sought tochange the terms of one, and therefore the issue is notwhether an existing agreement controls the controversy.They look to the acquisition of rights for the future, not

17 See generally Comment, Employee Drug Testing: Federal Courts Are Redefining

Individual Rights of Privacy, Will Labor Arbitrators Follow Suit?, 44 U Miami L Rev 489(1989) (arguing that a union is extremely likely to contest an employer's unilateral impo-sition of an unconstitutional drug testing program).

18 45 USC § 152(7).

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to assertion of rights claimed to have vested in thepast.9

To resolve a major dispute, the parties must undergo a com-plex process of RLA-mandated bargaining and arbitration: "Untilthey have exhausted those procedures, the parties are obligatedto maintain the status quo, and the employer may not implementthe contested change in rates of pay, rules, or working condi-tions."2° As a matter of law, the union may request a prelimi-nary injunction to preserve the pre-dispute status quo.2'

B. The Definition of a Minor Dispute Under the RLA

The RLA provides for compulsory NRAB arbitration of minordisputes,22 defined as disputes that grow "out of grievances orout of the interpretation or application of [existing] agreementsconcerning rates of pay, rules, or working conditions." Minordisputes pertain to

"the existence of a collective agreement already conclud-ed or, at any rate, a situation in which no effort is madeto bring about a formal change in terms or to create anew one. The dispute relates either to the meaning orproper application of a particular provision with refer-ence to a specific situation or to an omitted case. In thelatter event the claim is founded upon some incident ofthe employment relation, or asserted one, independentof those covered by the collective agreement, e.g., claimson account of personal injuries. In either case the claimis to rights accrued, not merely to have new ones createdfor the future."24

Unlike a major dispute, during which the union is entitled toa preliminary injunction preserving the pre-dispute status quo,during a minor dispute the court normally does not retain juris-

Conrail, 491 US at 302, quoting Elgin, J. & E. Railroad Co. v Burley, 325 US 711,

723 (1945).2o Id at 302-03.21 See Marion Crain, Expanded Employee Drug.Detection Programs and the Public

Good: Big Brother at the Bargaining Table, 64 NYU L Rev 1286, 1299 (1989).22 The RLA provides that "[a] minor dispute in the railroad industry is subject to

compulsory and binding arbitration before the [NRABI ... or before an adjustment boardestablished by the employer and the unions representing the employees." Conrail, 491 USat 303-04.

2' 45 USC § 152(6) and § 153(1)(i).2 Conrail, 491 US at 303, quoting Burley, 325 US at 723 (emphasis added).

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diction to preserve the pre-dispute status quo.25 Conrail, howev-er, left open the question of whether a court retains jurisdictionto grant a preliminary injunction preserving the status quo in aminor dispute where the disputed change may inflict irreparableharm on employees by depriving them of their constitutionalrights.

26

II. THE CONRAIL "ARGUABLY JUSTIFIED" TEST

In Consolidated Rail Corp. v Railway Labor Executives' Asso-ciation,27 the Supreme Court established the "arguably justified"standard for determining whether an employer-employee disputeis major or minor under the RLA. The Conrail Court held that"Iwhere an employer asserts a contractual right to take the con-tested action, the ensuing dispute is minor if the action is argu-ably justified by the terms of the parties' collective-bargainingagreement. Where, in contrast, the employer's claims are frivo-lous or obviously insubstantial, the dispute is major. "2 The Su-preme Court stressed the "relatively light burden which the rail-road must bear" in establishing that the dispute is minor andthus subject to the exclusive jurisdiction of the NRAB.29

In Conrail, a railroad employees' union opposed therailroad's unilateral imposition of urinalysis drug screening aspart of all periodic and return-from-leave physical examina-tions.3 ° The Court held that inclusion of drug testing in thesephysical examinations was "arguably justified" by the impliedterms of the collective bargaining agreement between the rail-road and the union, thus constituting a minor dispute within theexclusive jurisdiction of the NRAB.3'

In holding that the railroad's testing scheme was arguablyjustified, the Court first noted that "[clollective bargaining agree-ments often incorporate express or implied terms that are de-signed to give management, or the union, a degree of freedom ofaction within a specified area of activity." 2 In addition, theCourt held that

2 Id at 304.21 Id at 304 n 5.2' 491 US 299 (1989) ("Conrail").2' Id at 307.2' Id, quoting Brotherhood of Maintenance of Way Employees, Lodge 16 v Burlington

N Railroad Co., 802 F2d 1016, 1022 (8th Cir 1986).30 Id at 300.31 Conrail, 491 US at 320.32 Id at 308.

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if an employer asserts a claim that the parties' agree-ment gives the employer the discretion to make a par-ticular change in working conditions without prior nego-tiation, and if that claim is arguably justified by theterms of the parties' agreement (i.e., the claim is nei-ther obviously insubstantial or frivolous, nor made inbad faith), the employer may make the change and thecourts must defer to the arbitral jurisdiction of the[NRAB 1.

Therefore, if an employer can demonstrate that an implied-in-factcontractual term grants it discretion to make a particular changeor alteration in working conditions, then the dispute is minor. Indetermining whether such an implied term exists, a court shouldinterpret the agreement in light of "'practice, usage, and cus-tom.'"'

Observing that the plaintiff railroad had always requiredperiodic and return-to-duty physical examinations, and notingthat "[iun the past, the parties have left the establishment andenforcement of medical standards in [the railroad's] hands,"35

the Conrail Court found an implied-in-fact agreement that therailroad would determine the scope of such examinations.36

Thus, the minor dispute fell within the exclusive jurisdiction ofthe NRAB. 7

Significantly, because the railroad employees' union did notallege irreparable harm in their request for injunctive relief, theConrail Court declined to resolve "whether a status quo injunc-tion based on a claim of irreparable injury would be appropri-ate."" In a footnote, however, the Court alluded to a First Cir-cuit case holding that a "union [might] be able to enjoin changesin working conditions if it would be impossible otherwise later tomake the workers whole."39 The Court also cited a case in which

3' Id at 310.34 Id at 311, quoting Transportation.Communication Employees Union v Union Pacif-

ic Railroad Co., 385 US 157, 161 (1966).Conrail, 491 US at 317.Id at 317-20. See also Crain, 64 NYU L Rev at 1316-17 (cited in note 21) (observing

that in Conrail the Supreme Court accepted the argument that the employer could chooseits desired drug-testing methodology based upon an implied-in-fact term in the collectivebargaining agreement).

17 Id at 319.' Id at 304 n 5. See also Air Line Pilots Association International v Alaska Airlines,

Inc., 898 F2d 1393, 1400 (9th Cir 1990) (Brunetti dissenting) (noting that under Conrail itis uncertain whether a court retains jurisdiction to issue a preliminary injunction basedon the traditional showing of irreparable injury).

' Conrail, 491 US at 304 n 5, citing Air Line Pilots Association International v East.

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the Sixth Circuit did not resolve whether a court could grant apreliminary injunction in a minor dispute based on a showing ofirreparable harm.4"

The Conrail Court also declined to resolve whether the ab-sence of "cause"41 in the railroad's testing justified enjoining thetesting on Fourth Amendment grounds.4" Instead, the Courtmerely observed that "it is not the role of the courts to decide themerits of the parties' dispute" in the context of a minor dis-pute.'

III. THE UNCONSTITUTIONALITY OF A PURELY RANDOM,

MANDATORY, AND SUSPICIONLESS DRUG TESTING PROGRAM

If a public employer subject to the RLA unilaterally institut-ed a purely random, mandatory, and suspicionless drug testingprogram, a court would likely find the testing scheme unconstitu-tional. However, if a court simultaneously held that the testingprogram constituted a minor dispute under the Conrail "arguablyjustified" test, the court would need to consider the appropriate-ness of preliminarily enjoining the employer from continuing theunconstitutional testing program pending the NRAB's dispositionof the dispute.

A. The Supreme Court's Decisions in Skinner and Von Raab

In two Supreme Court cases decided just months before Con-rail, the Supreme Court ruled that suspicionless drug testingviolates the Fourth Amendment unless the testing serves a com-pelling government interest that outweighs the employees' inter-est in privacy. In Skinner v Railway Labor Executives' Associa-tion," railway labor organizations sued to enjoin regulationspromulgated by the Federal Railroad Administration ("FRA")governing drug and alcohol testing of railroad employees.4 The

ern Air Lines, Inc., 869 F2d 1518, 1520 n 2 (DC Cir 1989).40 Id, citing Division No. 1, Detroit, Brotherhood of Locomotive Engineers v Consoli-

dated Rail Corp., 844 F2d 1218, 1224 n 10 (6th Cir 1988)." Under Skinner v Railway Labor Executives' Association, 489 US 602 (1989), and

National Treasury Employees Union v Von Raab, 489 US 656 (1989), discussed at lengthin Part III below, in certain contexts a public employer's imposition of a suspicionlessdrug test (i.e. a test imposed in the absence of "cause") violates its employees' FourthAmendment protection against unreasonable searches and seizures. Skinner, 489 US at620; Von Raab, 489 US at 669.

42 Conrail, 489 US at 318.43 Id." 489 US 602 (1989).4 In Skinner, the Court ruled that the Fourth Amendment, which protects the public

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Court ruled that drug and alcohol testing requiring "'compelledintrusio[n] into the body'" constitutes a search and seizure underthe Fourth Amendment."' However, the Court held that becausecertain railroad employees engage in safety-sensitive tasks, thegovernment's interest in public safety constituted a "'specialnee[d]' justifying departure from the normal warrant and proba-ble-cause requirements of the Fourth Amendment.47 Therefore,the drug and alcohol tests mandated by the FRA regulationswere deemed reasonable under the Fourth Amendment 4 be-cause a compelling governmental interest-public safe-ty-outweighed the employees' privacy concerns.49

On the same day, in National Treasury Employees Union vVon Raab, ° the Court held that the United States CustomsService's drug testing program, which affected employees apply-ing for promotions to drug-interdiction positions where theywould carry firearms, was subject to the Fourth Amendment'sreasonableness requirement.51 However, the Court found thatthe government's compelling interest in ensuring that front-lineinterdiction personnel are physically fit and have unimpeachableintegrity and judgment outweighed the agents' privacy inter-ests.52 Thus, despite the absence of individual suspicion or prob-able cause, the drug testing survived scrutiny under the FourthAmendment."

Together, Skinner and Von Raab stand for the propositionthat, unless a compelling governmental interest such as publicsafety outweighs employees' privacy interests, a mandatory andsuspicionless drug testing program does not satisfy the FourthAmendment's reasonableness requirement. Thus, if a public em-

from unreasonable searches and seizures, applied to the FRA regulations; railroads com-ply with the governmental rules under threat of law and are therefore viewed as agents ofthe government. Skinner, 489 US at 615-16. The effect of this ruling is that private sectoremployers subject to such regulations are treated as "public sector employers" for purpos-es of constitutional analysis.

" Skinner, 489 US at 616, quoting Schmerber v California, 384 US 757, 767-68(1966).

'7 Id at 620, quoting Griffin v Wisconsin, 483 US 868, 873-74 (1987).48 Fourth Amendment jurisprudence dictates that a warrant or reasonable suspicion

is normally required before a drug test can be imposed on an unconsenting subject. Ofcourse, where a sufficiently compelling governmental interest exists, individualized suspi-cion is not a prerequisite. Skinner, 489 US at 619, 624.

'9 Id at 633.'0 489 US 656 (1989).

Id at 665.82 Id at 669-70.

" Id.

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ployer subject to the RLA unilaterally imposed a purely ran-dom,5 4 mandatory, and suspicionless program on its employeesabsent a compelling governmental interest, then the programwould be unconstitutional with respect to those employees occu-pying non-safety-sensitive positions.55

B. The Third Circuit Court of Appeals' Decisions in TransportWorkers' Union and Bolden

The Supreme Court has not specifically considered whether apublic sector employer's imposition of a purely random, mandato-ry, and suspicionless drug testing program violates its employees'Fourth Amendment rights. However, two recent decisions by theUnited States Court of Appeals for the Third Circuit reiteratedthat a valid public safety concern must exist before such a testingprogram will pass constitutional muster.

In Transport Workers' Union of Philadelphia, Local 234 v SEPa. Transportation Authority," which was reconsidered in lightof the Supreme Court's decision in Conrail, the Third Circuitheld that a random drug testing program is constitutionally validonly where (1) adequate safeguards protect the workers' privacyrights, and (2) a compelling public safety concern is present.57 InBolden v SE Pa. Transportation Authority," the same court heldthat the transportation authority's imposition of a mandatory,suspicionless drug test on a maintenance worker was unconstitu-tional, absent suspicion of drug use or a public or worker safetyconcern related to the janitor's employment tasks.59

In neither Transport Workers' Union nor Bolden did theThird Circuit establish a specific test to determine when anemployee's job raises a public or worker safety concern; rather,the determination is seemingly made on a case-by-case basis.Taken together, however, the cases make clear that a publicemployer's unilateral imposition of a purely random, mandatory,and suspicionless drug test violates the affected employees'Fourth Amendment rights.

5' As noted above, a "purely random" drug test does not distinguish between employ-ees occupying safety-sensitive positions and other employees. See note 15.

" For example, if such a test were imposed upon janitors in a transit authority'sadministrative offices, then the test would not be justified by any pressing public safetyconcern and would violate these employees' Fourth Amendment rights.

884 F2d 709 (3d Cir 1988).Id at 711-12.

'8 953 F2d 807 (3d Cir 1991).Id at 822-24.

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IV. THE POSSIBILITY OF PRELIMINARILY ENJOINING A DRUGTESTING PROGRAM DURING A MINOR DISPUTE

Given that a public employer's unilateral imposition of apurely random, mandatory, and suspicionless drug testing pro-gram is unconstitutional, employees subject to the program couldnormally establish a likelihood of irreparable harm, thereby al-lowing a court to grant a preliminary injunction.' Under Con-rail, however, a court would classify a dispute arising from sucha testing policy as minor if it believed that the program were "ar-guably justified." 1 Under the RLA, once a court characterizes adispute as minor, it loses jurisdiction: the dispute falls under theexclusive jurisdiction of the NRAB."2 When a court loses juris-diction, it normally may not issue a preliminary injunction. How-ever, the Conrail Court left unresolved whether, after classifyinga dispute as minor, a court can grant a preliminary injunctionpreserving the pre-dispute status quo.63

Since Conrail, none of the circuits have applied the Conrail"arguably justified" test to a dispute arising over a publicemployer's unilateral imposition of an unconstitutional drug test-ing program. Three courts, however, have addressed whether itwould be appropriate to enjoin a drug testing program during aminor dispute where the affected employees have successfullyestablished that they would suffer irreparable harm if injunctiverelief were denied.

In Railway Labor Executives' Association v Metro-North Com-muter Railroad,' the District Court for the Southern District ofNew York followed Conrail in ruling that, in light of practice,usage, and custom, periodic and return'from-leave drug testingconstituted a minor dispute.6 Although the court declined to

' Although the requirements vary among the circuits, the general elements a movantmust establish for a court to grant a preliminary injunction are that: (1) movant will suf-fer irreparable injury if the injunction is not granted; (2) movant is likely to succeed onthe merits; (3) the harm to the movant if the injunction is not granted outweighs theharm to the opposing party if the injunction is granted; and (4) the injunction benefits thepublic interest. 7 Moore's Federal Practice 65.04[1], at 32-33 (Matthew Bender, 1994).With respect to the irreparable harm element, the deprivation of constitutional rights gen-erally constitutes irreparable injury justifying a preliminary injunction. Id at 59-60. Seealso Elrod v Burns, 427 US 347, 373 (1976) (plurality opinion emphasizing that violationof First Amendment rights for even one minute constitutes irreparable injury).

e' Conrail, 491 US at 319. See note 37 and accompanying text.82 Conrail, 491 US at 304.

See notes 31-34 and accompanying text.759 F Supp 1019 (S D NY 1990).

6' Id at 1022.

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enjoin the employer from implementing the disputed drug testingprogram, the court nevertheless declared that in an appropriatecase a court should grant a preliminary injunction preserving thepre-dispute status quo pending arbitration.66 In particular, thecourt suggested that it would have enjoined the employer if theemployees had been able to establish that they would suffer ir-reparable harm if the injunction were not granted. 7

Similarly, in Allied Pilots Association v American Airlines,Inc.,' the Fifth Circuit, following Conrail, scrutinized the pastpractices of the employer and employees in addition to the lan-guage of their collective bargaining agreement to determine thata dispute between an airline and the pilots' union over theairline's alcohol testing procedures was minor. 9 Reversing thedistrict court's grant of a preliminary injunction, the court statedthat the possibility of irreparable harm to an employee's reputa-tion is insufficient to warrant preliminary injunctive relief.70 Inso holding, however, the court suggested that if the plaintiff hadestablished more substantial irreparable harm, then preliminaryinjunctive relief would have been appropriate.7

Finally, in Air Line Pilots Association, International v AlaskaAirlines, Inc.,72 the Ninth Circuit ruled that a dispute over apolicy requiring mandatory drug testing without notice after anemployee tested positive for drug use in a test based upon rea-sonable suspicion constituted a minor dispute; past practice dem-onstrated that the employees consented to the prior suspicion-based drug testing. Refusing to reconsider the district court'sdenial of a preliminary injunction, the court stated: "[Wie upholdthe district court's determination that the evidence presented didnot indicate a sufficient likelihood of [the plaintiff] prevailing onthe merits to grant the preliminary injunction." 3

Dissenting inAir Line Pilots, however, Judge Brunetti cor-rectly noted that the majority opinion failed to separate the juris-

Id at 1023.

67 Id.

6898 F2d 462 (5th Cir 1990).Id at 465.

70 Id at 465-66." Id. See also International Brotherhood of Teamsters, Chauffeurs, Warehousemen &

Helpers of American.Airline Div. & Teamsters Local 19 v SW Airlines Co., 875 F2d 1129,1136 (5th Cir 1989) (holding that to grant a status quo injunction, the employee mustdemonstrate substantial irreparable harm).

72 898 F2d 1393 (9th Cir 1990) ("Air Line Pilots").13 Id at 1397.

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dictional issue at hand from resolution on the merits. JudgeBrunetti stated:

I dissent from the majority opinion because it character-izes the decision on whether a dispute is "minor," underthe Railway Labor Act. . ., as a decision on the merits.This decision is clearly jurisdictional, not a decision onthe merits. Once the district court determined, as amatter of law, that the dispute was minor, the districtcourt properly held that it had no jurisdiction to consid-er the merits of appellants' claim or to grant injunctiverelief under the RLA. The district court also properlydenied appellant's, request for an injunction based ontraditional, equitable principles.74

The district court had first determined that the dispute wasminor, and it had then considered whether to grant a preliminaryinjunction based on traditional equitable principles, namely "ashowing of 'irreparable injury' and the probability of success onthe merits."75 At the appellate level, the majority also denied theinjunction as part of its inquiry into the merits of the case,76

thereby conflating the purely jurisdictional nature of the ma-jor/minor determination with resolution of the dispute on themerits.

Judge Brunetti's dissenting opinion in Air Line Pilots correct-ly explains that once a court classifies a dispute as minor, it nolonger retains jurisdiction over the case. This argument is ex-tremely potent: once a court classifies the dispute as minor, thecase immediately falls under the jurisdiction of the NRAB, and acourt cannot subsequently grant a preliminary injunction.77

Moreover, a court certainly cannot grant a preliminary in-junction before classifying the dispute as minor. Although thelegislative history of the RLA is silent on this issue, one of theobvious purposes behind the major/minor dispute classificationsystem is to ensure that disputes are resolved in the forum Con-gress has designated. If a court were to grant a preliminary in-junction preserving the status quo before classifying the dispute

Id at 1398 (Brunetti dissenting).Id (Brunetti dissenting).

7' Air Line Pilots, 898 F2d at 1396-1400 (Brunetti dissenting).Significantly, Judge Brunetti also expressly observed that under Conrail "ilt is not

clear whether the court had jurisdiction to issue a preliminary injunction, pending thedecision on the merits by the Board, based on the traditional showing of 'irreparableharm.' Id at 1400 (Brunetti dissenting).

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as minor, then the court would undermine the jurisdictional as-pect of the major/minor distinction. Congress determined thatwhen a court characterizes a dispute as minor, it loses jurisdic-tion. Thus, if a significant reason exists for a court to retain ju-risdiction even after characterizing the dispute as minor, it islikely that Congress did not intend for such a dispute to be clas-sified as minor in the first place.

V. A COURT FACED WITH THIS ISSUE SHOULD IMPOSE APRESUMPTION THAT A DISPUTED UNCONSTITUTIONAL PROGRAM IS

NOT "ARGUABLY JUSTIFIED" AND THUS THAT THE DISPUTE ISMAJOR

A court confronted with an RLA dispute arising from a pub-lic employer's unilateral imposition of a purely random, mandato-ry, and suspicionless drug testing program faces a serious dilem-ma. Because the drug testing program does not further a compel-ling governmental interest such as public safety, the testingclearly violates the Fourth Amendment's reasonableness require-ment. Because employees suffer irreparable harm when deprivedof their constitutional rights, normally they can seek a court'sprotection by requesting a preliminary injunction.7" Under theRLA, however, a court initially possesses jurisdiction over theemployer-employee dispute only for the purpose of classifying thedispute as major or minor. Therefore, if the dispute is minorunder the Conrail "arguably justified" test, then the court doesnot have the authority to grant a preliminary injunction. Can acourt nevertheless protect the employees from suffering irrepara-ble harm pending the NRAB's disposition of the dispute?

This Comment recommends that in order to protect suchemployees, a court facing this issue should presume that thedisputed program is not "arguably justified" and thus that thedispute is major, thereby preserving the pre-dispute statusquo.79 Since Conrail, the courts have endeavored where possibleto read an implied-in-fact term authorizing implementation ofdrug testing programs into existing collective bargaining agree-ments, thus classifying the disputes as minor.' However, this

78 See note 60 and accompanying text.

7' This Comment recommends more than that a court should presume that the dis-puted program is not "arguably justified." This Comment proposes that when a disputearises over the unilateral imposition of any clearly unconstitutional program, a courtshould presume that the disputed program is not "arguably justified" except under thespecific circumstances discussed below.

' See, for example, Allied Pilots, 898 F2d at 464-65; Metro.N Commuter, 759 F Supp

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approach is inappropriate in situations where a unilaterally im-posed drug testing program violates employees' constitutionalrights. Given the nature of the potential harm, it is illogical toassume that employees have contractually waived their FourthAmendment rights based upon practice, usage, and custom wheresuch practice, usage, and custom did not implicate the employees'constitutional rights. In situations where employees establishthat they will suffer irreparable harm through violation of theirconstitutional rights, a court applying the Conrail "arguably jus-tified" test should impose a rebuttable presumption that the dis-puted drug testing program is not "arguably justified." An em-ployer may rebut the presumption only if the testing program isexplicitly articulated in the collective bargaining agreement or ifpractice, usage, and custom clearly signify the employees' con-tractual waiver of their rights."1

Imposing a presumption that the disputed program is not"arguably justified" makes sense for five reasons: (1) the pre-sumption yields the correct legal ruling because it is unlikelythat employees impliedly consent contractually to the unilateralimposition of an unconstitutional testing program; (2) the pre-sumption creates economic incentives encouraging both parties tonegotiate the issue ex ante, thereby avoiding the dispute altogeth-er; (3) the presumption is inexpensive to institute and adminis-ter; (4) the presumption satisfies equitable considerations; and (5)the presumption is the best available alternative for resolution ofthis issue.

First, it is highly unlikely that employees impliedly consentto the unilateral imposition of unconstitutional drug testing pro-grams. Where an employer and a union negotiate a collectivebargaining agreement, the employees' contractual waiver of aconstitutional right represents a major negotiating issue. To pre-serve its rights under the agreement, an employer would proba-bly insist upon the express memorialization of any such employeewaiver within the collective bargaining agreement. Therefore,

at 1022.

" Simply classifying the dispute as major would not comport with the manner in

which courts have applied the Conrail test. As presently applied, the Conrail test virtual-ly demands classifying disputes as minor. See note 80 and accompanying text. For equita-ble reasons, this Comment essentially proposes that courts apply a different standard tothis category of disputes. In particular, as discussed below, applying a less permissivestandard by means of imposing a presumption produces the correct legal result in an effi-cient manner without interfering with the normally smooth functioning of the Conrailtest.

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where a court finds that the bargaining agreement does not con-tain an express waiver of a constitutional right, it should recog-nize the limited value of examining practice, usage, and customto determine whether the disputed change is "arguably justified"by the agreement, especially in situations where past practiceshave not raised constitutional issues. A presumption that thedisputed program is not "arguably justified" recognizes that prac-tice, usage, and custom are not sufficiently probative in this con-text to warrant classifying the dispute as minor unless the em-ployees expressly contractually waived their Fourth Amendmentrights in the past.

Second, establishing a presumption that the disputed pro-gram is not "arguably justified" creates the proper economic in-centives. Resolution of a major dispute is more time-consumingand more expensive than resolution of a minor dispute.8 2 There-fore, if parties know ex ante that a court will presume the disput-ed program is not "arguably justified" unless an explicit term inthe collective bargaining agreement contradicts this presumption,then the employer and the union will vigorously bargain over andexplicitly document any such drug testing program before finaliz-ing future collective bargaining agreements, thereby avoiding thepotentially high costs associated with resolving a major dispute.

Third, this presumption is inexpensive to institute and ad-minister.s3 For the most part, the Conrail "arguably justified"test works extremely well in practice. As noted above, the Con-rail test renders it extremely easy for an employer to show that aprogram is "arguably justified" in light of practice, usage, andcustom. Such a low threshold reduces litigation costs for bothparties and lowers the court's fact-finding costs. It also creates anincentive for both parties to avoid costly disputes by carefullynegotiating the terms of collective bargaining agreements. Simi-larly, instituting a presumption that the disputed program is not"arguably justified" is also efficient because such a presumptionfunctions as a predictable, bright-line rule around which bothemployers and unions can structure their bargaining activities.At the same time, instituting the presumption does not interferewith the normally smooth functioning of the Conrail test because

82 Crain, 64 NYU L Rev at 1296-97 (cited in note 21).

'3 This argument assumes that both parties negotiate over this program ex ante. Ifboth parties do not negotiate ex ante, then the presumption will actually increase costs be-cause of the increased cost of resolving a major dispute. The danger of this increased cost,however, will serve as an incentive to both parties to negotiate over this program ex ante.

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the presumption applies only to a limited number of readily-iden-tifiable cases.

Fourth, the presumption that the disputed program is not"arguably justified" is an equitable solution to a pressing legalproblem: it vindicates employees' Fourth Amendment rights with-out requiring them to suffer irreparable harm pending NRABresolution of the dispute. Furthermore, because the presumptionis rebuttable, it also accommodates those rare cases in whichemployees have, in fact, contractually waived their FourthAmendment rights. An employer can easily rebut this presump-tion if it can point to a provision in the collective bargainingagreement expressly waiving the right." An employer can alsorebut the presumption in situations where a court properly findsthat employees clearly waived their rights based on practice,usage, and custom. 5

Finally, the alternative resolution of this issue - granting apreliminary injunction preserving the pre-dispute status quo - isimproper. It seems likely that the Conrail Court refused to passon whether a status-quo injunction in a minor dispute mightfunction as an appropriate remedy in part to preclude subsequentcourts from issuing a preliminary injunction where the court nolonger retained jurisdiction. Allowing a preliminary injunctionafter a court classifies the dispute as minor contradicts the juris-dictional aspect of the major/minor dispute distinction."6

Moreover, if a court were first to classify a dispute as minorand then to issue a preliminary injunction preserving the pre-dispute status quo, granting the injunction would imply that thecourt did not believe that the dispute was minor in the firstplace. Instead, it must have believed that the employees express-ly or impliedly consented contractually to the unconstitutional

Constitutional rights may be waived by contract where the facts and circumstancessurrounding the waiver establish that the waiving party waived its rights of its own voli-tion, with full understanding of the consequences of its waiver. Erie Telecommunications,Inc. v City of Erie, Pa., 853 F2d 1084 (3d Cir 1988).

It is not particularly easy to imagine such a situation. Perhaps where the employ-ees have given consent to the imposition of a similarly unconstitutional test, then a dis-pute over a different unconstitutional drug test should be classified as minor. However,this argument holds only if the employees have waived their rights after the collectivebargaining agreement has taken effect. If the employees have expressly waived theirrights within the collective bargaining agreement, then the fact that a waiver of the rightto object to the new test is not memorialized in the agreement suggests that the employ-ees have not impliedly consented to the imposition of such a test. The memorialization ofthe first waiver suggests a custom that all waivers must be included within the expressterms of the collective bargaining agreement.

" See Section IV.

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program, thereby waiving their Fourth Amendment rights andthus their right to a preliminary injunction to prevent irrepara-ble harm. A court would be behaving inconsistently if on the onehand it classified the dispute as minor and on the other hand itfound that the employees might suffer irreparable harm pendingthe dispute's disposition by the NRAB.

CONCLUSION

If required to classify a dispute arising from a publicemployer's imposition of a purely random, mandatory, andsuspicionless drug testing program under the RLA, a courtshould protect employees against violation of their FourthAmendment rights. The best method to accomplish this goal isfor a court to presume that the disputed unconstitutional test isnot "arguably justified" unless explicitly articulated in the collec-tive bargaining agreement or unless practice, usage, and customclearly signify the employees' contractual waiver of their rights.Imposing this presumption, and thus classifying the dispute asmajor, preserves the status quo before the testing program wasinstituted, thereby enjoining the testing pending NRAB scrutiny.Classifying the dispute as major also recognizes that such testingis so inherently intrusive that it would be illogical for a court tofind that employees contractually submitted to such testingthrough an implied-in-fact term in their collective bargainingagreement. Finally, this presumption creates the proper incen-tives for avoiding the dispute in the first place by encouragingboth sides to negotiate and memorialize the specifics of a drugtesting program before signing the collective bargaining agree-ment.